APPEAL from the Circuit Court of Will County; the Hon. CHARLES
P. CONNOR, Judge, presiding.
MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
The defendant appeals from a conviction for the offense of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), on the ground that the penalty prescribed (Ill. Rev. Stat. 1979, ch. 38, par. 33A-3) is unconstitutionally severe.
The conviction arises from an incident that occurred in the early morning hours of September 15, 1979. On the evening of September 14, the defendant was involved in a fight with some men at a tavern. He had taken to carrying a .357 magnum revolver in his car after previous altercations with these men. That night, he and a companion drove through the streets of Joliet, shooting out street lamps. Joliet Police Officer Larry Knott, who was on a special surveillance assignment for the burglary unit, heard shots and began to follow the car in which the defendant rode. Office Knott was dressed in plain clothes and was driving his personal automobile at the time.
The defendant feared that the men with whom he had fought that night were following him. He exited the car, armed with his revolver. The car was then driven haltingly up the street by the defendant's companion. As Officer Knott drove past the defendant, he said, "Police, tell your buddy to stop." The defendant was then standing some five feet to the left of Officer Knott's car. The defendant then opened fire with his revolver, shooting out the rear window of Officer Knott's car and damaging the car's roof, trunk, interior roof, and steering wheel. Officer Knott was struck by flying glass. Upon being struck by the breaking glass, Officer Knott lowered himself onto the front seat and sped away. Four shots struck the car and, according to Officer Knott, as many as six or seven shots were fired. The defendant was arrested some seven hours later.
The defendant was charged with three offenses and was tried by a jury. A verdict was directed in favor of the defendant on the charge of armed violence based on intimidation. (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-2 and 12-6.) The jury acquitted the defendant of the charge of attempt (murder). (Ill. Rev. Stat. 1979, ch. 38, pars. 8-4 and 9-1.) The defendant was convicted of the crime of armed violence based on criminal damage to property. (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-2 and 21-1.) He was sentenced to 12 years imprisonment. The defendant has had 37 convictions.
Armed violence is a Class X felony, if the dangerous weapon with which the defendant is armed is a firearm, stungun or taser, or a knife with a blade over 3 inches. (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-3 and 33A-1.) Armed violence, where the defendant is so armed, is punishable by a sentence of imprisonment of not less than 6 nor more than 30 years. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(3).) Probation, periodic imprisonment, or conditional discharge are not available Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3(c)(2)(C).
The defendant contends "that the armed statute is unconstitutional because the mandatory minimum penalty of six years for his conduct does not reasonably relate to the seriousness of the offense of criminal damage to property and many of the other offenses encompassed by the armed violence statute." He asserts that the legislature has here fixed a penalty in contravention of "the constitutional proscription which prohibits the deprivation of liberty without due process of law as well as the constitutional proscription that a penalty may not be so disproportionate to the seriousness of the offense that it shocks the moral sense of the community. People v. Bradley (1980), 79 Ill.2d 410, 403 N.E.2d 1029." He cites us to article I, section 11 of the Illinois Constitution, which provides: "All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship." In addition, he cites the eighth and fourteenth Amendments to the United States Constitution, which prohibit cruel and unusual punishment. "Simply put," the defendant argues, "the punishment does not fit the crime when it is the same as that for a crime which the average man would regard as far more serious."
The present armed violence statute, effective as of February 1, 1978, states: "A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2.) The felony, which this defendant committed while armed, was criminal damage to property in excess of $150. (Ill. Rev. Stat. 1979, ch. 38, par. 21-1.) It is a Class 4 felony, for which the penalty is from 1 to 3 years imprisonment (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1(a)(7)), with the possibility of probation, periodic imprisonment or conditional discharge. (Ill. Rev. Stat. 1979, ch. 38, par. 1005-5-3(b).) The actual amount of damage to Officer Knott's car was in excess of $500.
The defendant argues that the imposition of a minimum term of six years imprisonment would be excessive for certain activities that might fall within the language of the armed violence statute. If a defendant were charged with a crime which is criminal or feloniously criminal only because of the use of a weapon, and the charge were further enhanced to a Class X felony under the armed violence statute by virtue of the presence of that same weapon, the application of the statute to that case might well be unconstitutional. If the severe penalty for armed violence were imposed in a case in which the defendant was armed while committing a felony, but in which the weapon played no role in the crime itself, we might also find a constitutional deficiency in the application of the act. For example, a defendant who, while armed, commits perjury (Ill. Rev. Stat. 1979, ch. 38, par. 32-2) or bribery (Ill. Rev. Stat. 1979, ch. 38, par. 33-1) might have a valid constitutional objection to conviction under the armed violence statute. There might also exist a constitutional inadequacy in the imposition of a Class X penalty for the felony of criminal damage to property in excess of $150 where the presence of a weapon is merely incidental to the commission of the crime. Those issues, however, are not before us now, and we need not speculate upon the State's interest in the imposition of the minimum six-year penalty in any of the cases hypothesized above.
Because of the danger to victims, bystanders, and law enforcement personnel posed by armed felons, the legislature chose to create the crime of armed violence and to severely punish its violators. The type of behavior engaged in by this defendant is clearly within the intended scope of this statute.
"The rule is well established that one who would attack a statute or ordinance as unconstitutional must bring himself within the class as to whom the law is unconstitutional. (City of Elmhurst v. Buettgen, 394 Ill. 248.) A court will determine the validity of a statute or ordinance only in the light of the factual background presented by the record." (Village of Itasca v. Luehring (1954), 4 Ill.2d 426, 430, 123 N.E.2d 312.) "Embedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." (Broadrick v. Oklahoma (1973), 413 U.S. 601, 610, 37 L.Ed.2d 830, 839, 93 S.Ct. 2908, 2915.) "Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute." Broadrick v. Oklahoma, 413 U.S. 601, 613, 37 L.Ed.2d 830, 841, 93 S.Ct. 2908, 2916.
The possible overbreadth of a statute does not serve to suspend the normal rule of standing in the criminal law outside of the area of first amendment and related rights.
"[T]he Court has altered its traditional rules of standing to permit — in the First Amendment area — `attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' Dombrowski v. Fister, 380 U.S., at 486. Litigants, therefore, are permitted to challenge a statute not because their own rights of free expression are violated, but because of a judicial prediction or assumption ...